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<br />0031J5 <br /> <br />AREA-OF-ORIGIN PROTECTION IN <br />TRANS BASIN WATER DIVERSIONS: AN <br />EVALUATION OF ALTERNATIVE <br />APPROACHES <br /> <br />LAWRENCE J. MACDoNNELL* <br />AND CHARLES W. HOWE** <br /> <br />I. INTRODUCTION <br /> <br />In the arid West, population is often concentrated in areas with <br />limited surface water supplies. It has long been the practice to supple- <br />ment local supplies by bringing in water from other locations. In <br />many cases, these transfers involve moving water substantial dis- <br />tances-often between separate drainages and even between separate <br />river basins. The receiving area benefits from the additional water that <br />becomes available. However, concerns about the loss of this water to <br />the area from which it is taken (the area of origin) have led many <br />western states to enact some fonn of statutory protection or <br />limitation. I <br />This paper considers the approaches that have been taken to ac- <br />commodate the interests of the area of origin. We begin with a brief <br />discussion of the general legal context established by the prior appro- <br />priation doctrine. We turn next to a consideration of the conceptual <br />basis underlying area-of-origin protection. We then discuss the vari- <br />ous types of existing legal protection. Finally we offer an economic <br />framework within which to evaluate such legal approaches, and apply <br />that framework to the approaches previously described. <br /> <br />[ <br /> <br />I <br /> <br />I <br /> <br />II. GENERAL LEGAL CONTEXT: THE PRIOR <br />ApPROPRIATION SYSTEM <br /> <br />The prior appropriation system, prevalent in the western United <br />States, evolved from the customs of mid-nineteenth-century mining <br /> <br />. Director, Natural Resources Law Center, University of Colorado School of Law. <br />.. Professor of Economics. University of Colorado, Boulder. <br />I. For earlier discussions. see NATIONAL WATER COMMISSION, WATER POLICIES FOR THE Fu- <br />TURE 323-24 (1973) {hereinafter cited as NATIONAL WATER COMMISSION REPORT]; Kletzing & Robie. <br />Area a/Origin Statutes-The California Experience, 15 IDAHO L. REV. 419 (1979); Weatherford. Legal <br />Aspects of Interregional Wafer Diversion. 15 UCLA L. REV. 1299. 1313.)7 (1968); R. Johnson. Na- <br />tional Water Commission. Major Intt:rbasin Transft:rs-Legal Aspects 67-86 (Legal Study No.7) (pre. <br />Iiminary draft July 26.1971) [hereinafter cited as Legal Study No.7]. <br /> <br />527 <br />